Opposition Brief — Esteban v. Central Missouri State College

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TABLE OF CONTENTS

Table of Cases

Statement of Case 1

Reasons for Denying Writ—

I. There Is No Direct Conflict Between the Circuits,

No Undecided Federal Question and No Error .. 3

TABLE OF CASES

Barker v. Hardway, 283 F.Supp. 228 "i 6

Buttny v. Smiley, 281 F.Supp. 280 6

Cornette v. Aldridge, 408 S.W.2d 935 6

Dickey v. Alabama State Bd. of Educ., 273 F. Supp.

RE oe, RA ETS 00D EO en 6

Goldberg v. Regents, 57 Cal. note. 463 6

Jones v. State Board of Education, 407 F.2d 834 ........... 6

Soglin v. Kauffman, 295 F.Supp. 978 3

State ex rel. Sherman v. Hyman, 180 Tenn. 99 ................ 6

Tinker v. Des Moines School Dist., 393 U.S. 503 ............ 6

Zanders v. Louisiana State Bd. ~s Educ., 281 —

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GI ENT BGI FRENTE OP MME LE PENAL TRE TESS, LITTLE MEAS NI

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1969

No. 1026

ALFREDO ESTEBAN AND STEVE CRAIG ROBERDS,

Petitioners,

vs.

CENTRAL MISSOURI STATE COLLEGE, WARREN C.

LOVINGER, PRESIDENT AND W. LESTER SIMPSON a

PRESIDENT AND JOE HERNDON, LELAND J. CULP,

VIRGINIA GOTTLIEB, BYRON CONSTANCE, AND J.

N. CUNNINGHAM, MEMBERS OF THE BOARD OF

REGENTS OF CENTRAL MISSOURI STATE COLLEGE,

Respondents.

RESPONDENTS’ BRIEF AND SUGGESTIONS IN

OPPOSITION TO PETITION FOR WRIT

OF CERTIORARI

STATEMENT OF CASE

Respondents will herein attempt to follow the refer-

ence procedure established in the petition (at page 2).

With exceptions noted below, respondents accept pe-

titioners’ “Statement of Case” (Petition page 5), “The:

Facts”, including sub-paragraph “A” and “B” (Petition

pages 5-11).

;

—_ RR EES AS GORE OM RN NRE EBE INNIS SOLED OTE POR UST VI ET REIN SPOR SURE He RE 5

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2

Respondents co not agree as stated in paragraph one

(1), page 5, “Statement of Case”, that petitioners were

suspended “. . . for having participated in a mass demon-

stration...”

On the contrary, petitioners were each suspended on

specific charges, to-wit (A 24-25):

CHARGE AGAINST ESTEBAN

(Dated October 18, 1967—Exhibit “B”

to Complaint)

“You are hereby notified that you are charged

with contributing to and participating in an unruly and

unlawful mass gathering occurring on the 30th day of

March, 1967, at and near Central Missouri State College

in that you, the said Alfredo Esteban, did resist efforts

of one Dr. M. L. Meverden in dispersing said mass

gathering, failed and refused to identify yourself to Dr.

Meverden as requested and used vile and obscene lan-

guage towards and threatened a resident assistant of

the College at Foster-Knox Hall.”

CHARGE AGAINST ROBERDS

(Dated October 18, 1967—Exhibit “A”

to Complaint)

“You are hereby notified that you are charged

with contributing to and participating in an unruly and

unlawful mass gathering occurring on or about the 29th

and 30th day of March, 1967 at and near Central Mis-

souri State College in that you, the said Stephen Craig

Roberds, on the 5th day of February, 1967, directed

correspondence to Mr. E. J. Cantrell of the Missouri

Legislature evidencing your intention to participate in

such mass gathering, did thereafter advise Dean Hollis

Chalquist, Dean of Men, of your intention to participate

in such demonstration at which time you were specif-

ically advised that such participation would result in

immediate suspension from Central Missouri State Col-

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lege and that you did thereafter continue to contribute

to and participate in said mass gathering all of which

actions were in violation of the terms and provisions

of your disciplinary probation.”

Further, we do not agree with petitioners’ statement at

paragraph 1, page 6, of the petition that:

“There was, however, no evidence that either

student engaged in or organized any of these disrup-

tive or destructive activities.’

Lastly, respondents disagree with and reject petition-

ers’ “Summary of Evidence” (Petition p. 11) insofar as it

seeks to draw conclusions and vary from the statement of

facts.

REASONS FOR DENYING THE WRIT

I. There Is No Direct Conflict Between the Circuits,

No Undecided Federal Question and No Error.

Petitioners contend that there is a “. . . clear, disagree-

ment as to whether the ‘void for vagueness and over-

breadth’ doctrine applies to student conduct regulations”

(Petition p. 13), in the opinions of the Seventh Circuit in

Soglin v. Kauffman, No. 17427 (Cir. 7, October 24, 1969),

affirming the District Court opinion (295 F.Supp. 978) and

the opinion of the Eighth Circuit in this case. This con-

tention is apparently based on the unfounded and errone-

ous assumption that the Eighth Circuit has held that stand-

ards of vagueness and overbreadth are not applicable to

cases involving college and university regulations.

In this connection we call the Court’s attention spe-

cifically to the opinion at page 19 (A 37):

“3. The regulations. These are additionally at-

tacked for vagueness and overbreadth and hence no

substantive due process grounds...” The answers to

all this, we think, are several. First, the college reg-

POS PIPE APL EET LIE PLN S 9 RY MED TR AMEN BOT eae

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ulations, per se, do not appear to us to constitute the

fulcrum of plaintiffs’ discomfiture (Emphasis added).

The charges against Esteban and Roberd- did not even

refer to the regulations. Roberds was disciplined be-

cause he had participated in the demonstrations in the

face of specific warning delivered by personal inter-

view with the dean. This was defiance of proper col-

lege authority. Esteban was disciplined because of his

refusal to comply with an appropriate request by Doc-

tor Meverden and because of his childish behavior and

obscenity toward college officials. This, too, was de-

finance of proper college authority. There was no con-

fusion or unawareness in either case. The exercise of

common sense was all that was required. Each plain-

tiff knew the situation very well, knew what he was

doing, and knew the consequences.”

And subsequently and specifically the Court states

(Opinion pp. 23, 24) (A 41):

“We do not hold that any college regulation, how-

ever loosely framed, is necessarily valid. We do not

hold that a school has the authority to require a student

to discard any constitutional right when he matricu-

lates. We do hold that a college has the inherent

power to promulgate rules and regulations; that it has

the inherent power properly to discipline; that it has

power appropriately to protect itself and its property;

that it may expect that its students adhere to gen-

erally accepted standards of conduct; that, as to these,

flexibility and elbow room are to be preferred over

specificity; that procedural due process must be af-

forded (as Judge Hunter by his first opinion here spe-

cifically required) by way of adequate notice, definite

charge, and a hearing with opportunity to present

one’s own side of the case and with all necessary pro-

tective measures; that school regulations are not to be

measured by the standards which prevail for the crim-

inal law and for criminal procedure; and that the

courts should interfere only where there is a clear case

of constitutional infringement.”

bates

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It is therefore apparent that at the outset the Court of

Appeals has rejected petitioners’ argument attacking the

regulations complained 2f for the simple reason that the

regulations were not involved.

Further, at this point it is well to note that all of

petitioners’ assigned reasons for granting a writ of certi-

orari in this case are in their entirety an attack on various

college regulations alleged to be “void for vagueness and

overbreadth” and to violate petitioners’ rights under the

First Amendment when as a matter of fact the regulations

so attacked were not the basis of petitioners’ suspension

from Central Missouri State College as the Court of Ap-

peals has recognized.

Nowhere in its opinion does the Court of Appeals

approve the regulations complained of by petitioners. It

simply holds, 1) “. . . that a college has the inherent power

to promulgate rules and regulations, that it has the in-

herent power properly to discipline; that it has power ap-

propriately to protect itself and its property; that it may

expect that its students adhere to generally accepted stand-

ards of conduct; that, as to these, flexibility and elbow

room are to be preferred over specificity; that procedural

due process must be afforded (as Judge Hunter by his

first opinion here specifically required) by way of ade-

quate notice, definite charge, and a hearing with oppor-

tunity to present one’s own side of the case and with all

necessary protective measures; that school regulations are

not to be measured by the standards which prevail for

the criminal law and for criminal procedure; and that the

courts should interfere only where there is a clear case of

constitutional infringement.” (Opinion p. 23, A 41).

This holding is not in conflict with the opinion of

any other Circuit, does not involve unsettled questions of

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Federal Law and is not erroneous, as contended by pe-

titioners. It is, as indicated by the Court of Appeals in

accord and agreement with Barker v. Hardway, 283 F.Supp.

228, aff'd 399 F.2d 638 (4 Cir. 1968), cert. denied, 394

U.S. 905, Buttny v. Smiley, 281 F.Supp. 280, 285, 286

(D. Colo. 1968), Dickey v. Alabama State Bd. of Educ.,

273 F.Supp. 613, 618 (M.D. Ala. 1967), State ex rel.

Sherman v. Hyman, 180 Tenn. 99, 171 S.W.2d 822, 827

(1942), cert. denied, 319 U.S. 748, Zanders v. Louisiana

State Bd. of Educ., 281 F.Supp. 747, 757 (W.D. La. 1968),

Goldberg v. Regents, 57 Cal. Rptr. 463, 472 (Ct.App. 1967)

and Cornette v. Aldridge, 408 S.W.2d 935, 941 (Tex. Civ.

App. 1966).

Nor is this case in conflict with the holding of this

Court in Tinker v. Des Moines School Dist., 393 U.S. 503

(1969) wherein it was held that the wearing of armbands

in the circumstances of the case was entirely divorced

from actually or potentially distruptive conduct and

where there was no evidence that authorities had reason

to anticipate interference with and infringement of the

rights of others. Such are certainly not the facts of the

instant case. Likewise, the same is true of Jones v. State

Board of Education, 407 F.2d 834 (6th Cir. 1969) (now on

Cert. No. 731) which did not involve, as here, rioting, vio-

lence, destruction of property and wide spread interfer-

ence with rights of others.

Petitioners seek to have this Court hold that certain

college regulations, not the basis of their suspension, are void

for vagueness and overbreadth and deprive them of their

constitutional rights. In so doing they make a false issue

directed toward a general holding by the Court which is

unrelated to the actual facts.

We respectfully submit that the Court of Appeals

has correctly, reasonably and with total authoritative sup-

. “ee

PEGE LOTR RNG MOE IEIIN EOI GE IIE PELE EP LONG PERS LORY ERATE PRBS a eb MRE wb BERS 1

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port decided the real issues in this case and that certiorari

should be denied.

Respectfully submitted,

JACKSON O. WRIGHT

1 Tate Hall

Columbia, Missouri

and

Rospert L. WESNER

40614 South Ohio

Sedalia, Missouri

Attorneys for Respondents

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